The state has been given leave to appeal a Cape Town magistrate’s decision to grant bail to former Fidentia boss Arthur Brown.
In a ruling handed down on Tuesday, Cape High Court Judge Roger Cleaver found the magistrate had ”misdirected himself”, or erred, in several respects.
”In my view, the state has satisfied us that it enjoys a reasonable prospect of success on appeal,” he said.
The state is seeking to overturn the R10 000 bail granted to Brown in the Antheru Trust case in October 2008. Brown has been charged in that matter with fraud involving about R700 000, which carries a potential 15-year minimum sentence.
It argued he was a flight risk and should be taken back into custody.
Cleaver said the magistrate had found that both Brown and his attorney had made contact with Antheru head Herman Heydenrych, knowing he was a state witness.
”In my view, such conduct at the very least suggests a risk of interference with other witnesses and the magistrate’s failure to find as much amounted to a misdirection,” he said.
Perhaps more important was the magistrate’s finding that Brown did not pose a flight risk.
Cleaver said in a matter heard earlier this year, one of his colleagues, Judge Burton Fourie, had noted that in mid-2008 the Scorpions had not been unreasonable in concluding that Brown’s flight-risk status had ”significantly changed for the worse”.
This, Cleaver said, was a clear indication that another court might come to a conclusion different from the magistrate’s. Acting judge Elias Matojane agreed.
Brown’s advocate Dirk Uijs had argued that his client had already been on bail for more than a year and had not fled. To incarcerate him would make it impossible for him to properly prepare for trial, Uijs said.
The Antheru matter is one of three separate criminal cases against Brown, none of which have yet come to trial. — Sapa